01 January 2011

Texas Marriage Laws, 1836 (Gammel 1:1041)

The land we call Texas was first settled by Native Americans, then was part of Spain, France, and Mexico, before becoming the Republic of Texas. During the Spanish and Mexican years Catholicism was the official religion. Only Catholic priests could lawfully perform weddings. Due to the shortage of priests, settlers often married by bond or contract until a priest was available to sanctify the union of a couple.1

Shortly after declaring independence from Mexico, the Texians had to form a new government and enact new laws. The Spanish influence was still strong even though many of the Texians were Anglo. On 16 January 1836 the legislature passed an act setting up courts and defining duties of clerks and others.2 Section 9 of this act authorized "judges, alcaldes, commissarios, and regular accredited ministers of the Gospel, of whatever denomination" to celebrate the rites of matrimony in front of three disinterested and reputable witnesses. The officiant and two or more of the witnesses were required to sign copies of the certificate. One copy of the certificate was to be given to the bride, the other to be filed with "the archives of the municipality"3 (the county clerk after the new government was up and running). Notice that the officiant could be a representative of the government or a minister of any religion. A Catholic priest was no longer required. Interestingly, Spanish terms were still used for some officials: an alcalde was a mayor or the chief administrator of a Spanish town, a commissario was probably a commissioner. (See any Spanish-English dictionary or use http://translate.google.com/.)

Women had more recognition under Spanish law than under English common law.4 This Texas law specifically states the bride should be given the certificate. I interpret this as recognition that a woman could be entrusted with a legal document and might be more than a covered woman or a feme covert, even if she was married. A comparison to laws in many other states must be done before a definitive statement can be made as to the uniqueness of this statement in the Texas law. But a quick search in the online version of Hening's Statutes at Large for Virginia gets no hits for the word bride, except as part of a place named St. Bride's. The 1784 Virginia law states that a minister or congregation clerk must transmit a marriage certificate to the county clerk to be recorded, how much the county clerk should be paid to record the marriage, and the penalties for an officiant not filing the record in a timely manner.5 The law makes no mention of who else should receive a copy of the certificate, much less whether the bride might be given a copy.

A later clause in the 1836 Texas act described here legalized those contract and bond marriages that were not considered legal under Spanish or Mexican law:
all marriages heretofore celebrated by bond or otherwise, under the heretofore existing laws, are, in like manner, declared and decreed to be valid; provided, that all officers who have attended to the same, shall, on application of either party, or the friend of either party, file the bond or other evidence of such marriage, with the archives and records of the courts.
This law also declared "the issue of the parties legitimate."6 The declaration of legitimacy would minimize questions of inheritance that might arise later if the children had not been declared legitimate.

If a couple followed the law and filed a record with the county to legitimize a bond or contract marriage then ceremonies performed prior to the formation of The Republic of Texas may be documented in early county records. Don't assume a marriage date prior to 1836 means no record is available and overlook this possibility. Remember that some counties originally covered a much larger area than the modern-day county covers. Be sure you determine the county boundaries at the time of the early Republic to determine where to look for an early marriage record.

Mark M. Carroll, Homesteads Ungovernable: Families, Sex, Race, and the Law in Frontier Texas, 1823–1860, 8th ed. (Austin, Texas: Univ. of Texas Press, 2001), xi.
H. P. N. Gammel, comp., The Laws of Texas, 1822-1897, 10 vols. (Austin: Gammel Book Co., 1898), 1:1039-1046, "An Ordinance and Decree for opening the several Courts of Justice, appointing Clerks, Prosecuting Attorneys, and defining their duties, &c.," 16 January 1836; digital images, University of North Texas, The Portal to Texas History (http://texinfo.library.unt.edu/lawsoftexas/ : accessed 1 January 2011).
Gammel, The Laws of Texas, 1822-1897, 1:1041-1042.
Jean A. Stuntz, Hers, His,and Theirs: Community Property Law in Spain and Early Texas (Lubbock, Texas: Texas Tech Univ. Press, 2005), 29.
Freddie L. Spradlin, trans. "Laws of Virginia, October 1784--9th of Commonwealth," p. 505, Hening's Statutes at Large, Being a Collection of the Laws of Virginia, Virginia GenWeb (http://vagenweb.org/hening/vol11-26.htm : accessed 1 January 2011).
Gammel, The Laws of Texas, 1822-1897, 1:1042.

© 2011, Debbie Parker Wayne, All Rights Reserved

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